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United States Court of AppealsFor the First Circuit
No. 10-2082
FELIPE VICINI LLUBERES AND JUAN VICINI LLUBERES,
Plaintiffs-Appellants,
v.
UNCOMMON PRODUCTIONS, LLC, ET AL.,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Howard, Selya and Thompson,Circuit Judges.
Joan A. Lukey, with whom Maria G. Arlotto and Ropes & Gray,LLP were on brief, for appellants.
Elizabeth C. Koch, with whom Thomas Curley, Levine SullivanKoch & Schulz, LLP, Jonathan M. Albano and Bingham McCutchen LLPwere on brief, for appellees.
November 23, 2011
HOWARD, Circuit Judge. This case raises issues of First
Amendment law. At the center of the dispute is The Price of Sugar,
a documentary film released in 2007 by film company Uncommon
Productions, LLC, and its principal William M. Haney, III. The
film depicts the treatment of Haitian laborers on sugarcane
plantations in the Dominican Republic. It refers by name to
brothers Felipe and Juan Vicini Lluberes, senior executives of a
family conglomerate that owns and operates Dominican sugar
plantations. The Vicinis contend that the film is defamatory and
sued the filmmakers in federal court. The filmmakers moved for
summary judgment, which the court granted. The Vicinis appeal the
entry of summary judgment and the denial of a motion to compel
production of discovery materials.
For the reasons that follow, we affirm in part the entry
of summary judgment but otherwise vacate the judgment, vacate the
order denying the motion to compel, and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
The controversy that spawned The Price of Sugar is well
catalogued in the district court's rescript, Lluberes v. Uncommon
Prod'ns, LLC, 740 F. Supp. 2d 207 (D. Mass. 2010), and we will not
rehash it. Suffice it to say that the treatment of Haitian
laborers on Dominican sugarcane plantations and the conditions of
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company towns (or bateyes) where they live have received scrutiny
from many sectors for many years.
In 2004, the filmmakers began shooting in the Dominican
Republic. Much of the film follows Fr. Christopher Hartley, a
Roman Catholic priest critical of the Vicinis, as he seeks to
improve conditions for his parishioners in the bateyes. Those
conditions, the film highlights, include shanty quarters,
inadequate provisions, and little if any education for children.
At several points, Fr. Hartley and the film's narration reference
Vicini-owned bateyes and identify Felipe and Juan as bearing some
measure of responsibility for their disrepair. The film was
released publicly on March 11, 2007, at a film festival in Texas.
It has since received limited screenings in a handful of major
cities and other venues.
Later in 2007, the Vicinis sued the filmmakers in federal
district court in Massachusetts. Invoking the court's diversity1
jurisdiction, the Vicinis alleged that the film was defamatory and
identified fifty-three statements, although they later winnowed the
number of allegedly defamatory statements down to seven. The
filmmakers seasonably moved for summary judgment on these remaining
statements; they argued that Felipe and Juan were "public figures"
required to prove "actual malice" in accordance with New York Times
Uncommon Productions is based in Los Angeles but maintains an1
office in Massachusetts, where Haney resides.
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Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny, and that the
Vicinis could not so prove. The district court agreed and granted
summary judgment in the filmmakers' favor.
At the same time, the court denied a motion to compel
that the Vicinis had initially filed during discovery and later
renewed. The motion sought production of several categories of
documents; those at issue here include communications with a third-
party "script annotator" that the filmmakers had withheld on
attorney-client privilege grounds. The judge did not explain his
reasoning. This appeal followed.
II. DISCUSSION
We begin with the public-figure question, then turn to
the discovery dispute and go no further.
A. Public-Figure Status
1. Defamation and the First Amendment
Before the Supreme Court's decision in New York Times,
defamation law was shaped by the states and strongly favored their
interest in protecting an individual's reputation. See Bruno &
Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 586 (1st Cir.
1980) ("Once a plaintiff put into evidence a reputation-harming
statement and proof that defendant caused it to be disseminated, he
enjoyed an irrebuttable presumption of injury and a rebuttable
presumption of falsity."); see generally Joel D. Eaton, The
American Law of Defamation Through Gertz v. Robert Welch, Inc. and
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Beyond: An Analytical Primer, 61 Va. L. Rev. 1349, 1351-57 (1975)
(surveying defamation law in the various states that existed prior
to New York Times).
That balance shifted in 1964, when the Court considered
whether "the constitutional protections for speech and press limit
a State's power to award damages in a libel action brought by a
public official against critics of his official conduct." N.Y.
Times, 376 U.S. at 256. Recognizing the "profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open," id. at 270, the Court reasoned
that even falsehoods "must be protected if the freedoms of
expression are to have the breathing space that they need to
survive," id. at 271-72 (internal quotation marks and ellipsis
omitted). On that basis, the Court held that the First Amendment
"prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he
proves that the statement was made with 'actual malice' -- that is,
with knowledge that it was false or with reckless disregard of
whether it was false or not." Id. at 279-80.2
The Court soon applied the New York Times rule to
nonofficial "public figures." Curtis Publ'g Co. v. Butts, 388 U.S.
130, 154-55 (1967). Under Curtis, a defamation plaintiff was to be
Malice in this context is distinct from malice in the2
traditional sense of ill will. See Beckley Newspapers Corp. v.Hanks, 389 U.S. 81, 82 (1967) (per curiam).
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considered a public figure when he "commanded sufficient continuing
public interest and had sufficient access to the means of counter-
argument to be able to expose through discussion the falsehood and
fallacies of the defamatory statements." Id. at 155 (internal
quotation marks and citation omitted).
For a time, the New York Times rule was also extended to
private individuals. Rosenbloom v. Metromedia, Inc., 403 U.S. 29
(1971) (plurality opinion). According to the Rosenbloom plurality:
"If a matter is a subject of public or general interest, it cannot
suddenly become less so merely because a private individual is
involved, or because in some sense the individual did not
'voluntarily' choose to become involved. The public's primary
interest is in the event[.]" Id. at 43. Rather, the linchpin
became simply "whether the utterance involved concerns an issue of
public or general concern." Id. at 44; see also id. at 43-44 ("We
honor the commitment to robust debate on public issues, which is
embodied in the First Amendment, by extending constitutional
protection to all discussion and communication involving matters of
public or general concern, without regard to whether the persons
involved are famous or anonymous.").
The plurality's approach in Rosenbloom, however, was
repudiated in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),
which established the current framework. Gertz sought an
accommodation between the "need to avoid self-censorship by the
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news media," id. at 341, on the one hand, and the "legitimate state
interest underlying the law of libel," id., on the other. It did
so by linking "the constitutionally required showing in a
defamation action to the plaintiff's status." Pendleton v. City of
Haverhill, 156 F.3d 57, 67 (1st Cir. 1998). Under this new model,
public figures could succeed only on proof of actual malice as
defined by New York Times. Gertz, 418 U.S. at 342. As for purely
private individuals, however, the states could "define for
themselves the appropriate standard of liability" so long as
minimal constitutional safeguards were met. Id. at 346-47.3
Gertz identified two justifications for this public-
figure/private-figure dichotomy. The first, foreshadowed in
Curtis, was that "public figures usually enjoy significantly
greater access to the channels of effective communication and hence
have a more realistic opportunity to counteract false statements
than private individuals normally enjoy." Gertz, 418 U.S. at 344.
Thus, "[p]rivate individuals are . . . more vulnerable to injury,
and the state interest in protecting them is correspondingly
Under Massachusetts law, which presumably would apply in this3
case if the Vicinis were private figures, that standard isnegligence. Stone v. Essex Cnty. Newspapers, Inc., 330 N.E.2d 161,168 (Mass. 1975). Of course, a negligence standard "is far lessdemanding, from the plaintiff's standpoint, than the 'actualmalice' standard that obtains when the plaintiff is a publicofficial or public figure." Mandel v. Bos. Phoenix, Inc., 456 F.3d198, 201 (1st Cir. 2006). Thus, the status determination here, asin all defamation cases, "has potentially profound consequences." Id.
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greater." Id. The second justification, which was said to be more
important, was that public figures, like public officials, "have
assumed roles of especial prominence in the affairs of society" and
"must accept certain necessary consequences" of that status. Id.
at 344-45. One such consequence is "the risk of closer public
scrutiny than might otherwise be the case." Id. at 344; see also
id. at 345 (reasoning that a private individual "has relinquished
no part of his interest in the protection of his own good name, and
consequently he has a more compelling call on the courts for
redress of injury inflicted by defamatory falsehood").
Gertz contemplated that public-figure status usually
would arise in one of two ways, each with different repercussions.
In one, "an individual may achieve such pervasive fame or notoriety
that he becomes a public figure for all purposes and in all
contexts" -- the so-called general-purpose public figure. Id. at
351. But far more commonly (and directly relevant in this case)
"an individual voluntarily injects himself or is drawn into a
particular public controversy and thereby becomes a public figure
for a limited range of issues" -- the so-called limited-purpose
public figure. Id. That "limited range of issues" is identified
"by looking to the nature and extent of an individual's
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participation in the particular controversy giving rise to the
defamation." Gertz, 418 U.S. at 352.4
Guidance since Gertz has cautioned that a controversy
must be more than a "cause célèbre," Time, Inc. v. Firestone, 424
U.S. 448, 454 (1976), or "a matter that attracts public attention,"
Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 167 (1979). Rather,
it must be shown that "'persons actually were discussing some
specific question . . . [and] a reasonable person would have
expected persons beyond the immediate participants in the dispute
to feel the impact of its resolution.'" Bruno & Stillman, 633 F.2d
at 591 (quoting Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287,
1297 (D.C. Cir. 1980)). Also, to avoid improper "bootstrapping" (a
concept explored further below), the controversy must predate the
alleged defamation. Gray v. St. Martin's Press, Inc., 221 F.3d
243, 251 (1st Cir. 2000); Kassel v. Gannett Co., 875 F.2d 935, 941
(1st Cir. 1989); Bruno & Stillman, 633 F.2d at 591; see also
Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979) ("[T]hose charged
with defamation cannot, by their own conduct, create their own
defense by making the claimant a public figure.").
There is possibly a third category, hinted at in Gertz, but4
it is not implicated in this case. Pendleton, 156 F.3d at 67 n.7("The Gertz Court mentioned a third category -- a person whobecomes a public figure 'through no purposeful action of his own'-- but commented that 'the instances of truly involuntary publicfigures must be exceedingly rare.'" (quoting Gertz, 418 U.S. at345)).
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Once a controversy is isolated, the critical question
then becomes whether the plaintiff has attempted to "influence the
resolution" of that controversy. See, e.g., Wolston, 443 U.S. at
168 (public figures engage "the attention of the public in an
attempt to influence the resolution of the issues involved" or use
a newsworthy event "as a fulcrum to create public discussion");
Firestone, 424 U.S. at 453 (public figures "thrust themselves to
the forefront of any particular controversy in order to influence
the resolution of the issues involved in it"); Pendleton, 156 F.3d
at 69 (holding that the defamation plaintiff was a public figure
because he "voluntarily injected himself" into the controversy);
Bruno & Stillman, 633 F.2d at 591 (requiring a "thrusting into the
vortex"). If so, the plaintiff is a public figure and bears the
heavy, and often insurmountable, burden of proving actual malice.
2. Felipe and Juan
The filmmakers contend that Felipe and Juan are limited-
purpose public figures. The Vicinis vehemently dispute that label.
Although they no longer contest the existence of a public
controversy, the Vicinis argue that neither of them attempted to
influence its resolution. Their argument has three constituent
parts and spans both time and space. First, they say they did
nothing before 2003 that, standing alone, could subject them to
public-figure status. Second, any conduct after 2003 that might do
so, we are told, is shielded by the anti-bootstrapping principle.
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The third is that, whatever their conduct in the Dominican
Republic, it cannot make them public figures in the United States.
The status question is a legal one that we review de
novo. Pendleton, 156 F.3d at 68; see Rosenblatt v. Baer, 383 U.S.
75, 88 (1966). We do so mindful that the inquiry is "inescapably
fact-specific," Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 204
(1st Cir. 2006), and does not always lend itself to summary
judgment, compare id. at 204-07 (vacating status determination
because "the factual record, at the summary judgment stage, was too
uncertain to warrant a legal conclusion either way about Mandel's
status"), with Pendleton, 156 F.3d at 68 (affirming status
determination because "[t]here is no conflict as to any material
fact; the issue is whether the discerned facts suffice to establish
that Pendleton acted in a way sufficient to make him a public
figure for the purpose of this defamation action").
But here, as in Pendleton, the Vicinis do not argue that
the district court based its status determination on disputed
facts, only that the undisputed facts were insufficient to make
them public figures for the reasons outlined above. We disagree5
The Vicinis moved below to strike portions of the so-called5
Koch Declaration -- submitted by the filmmakers and bearing on thepublic-figure question -- on the grounds that the declarant lackedpersonal knowledge and could not authenticate appended exhibits.The district court denied the motion. Lluberes, 740 F. Supp. 2d at215 n.2. On appeal, however, the Vicinis do not assign error tothat denial or otherwise explain why we should limit ourconsideration of the Koch Declaration or its exhibits.
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and conclude, as did the district court, that both Felipe and Juan
are limited-purpose public figures. Because we ultimately reject
their anti-bootstrapping argument, we find it appropriate to begin6
by examining all relevant conduct up to the film's release in March
2007.
Within that span, both Felipe and Juan came to occupy
leadership positions within the family businesses. Felipe began
working for the company in the mid-to-late 1990s as a member of the
board. He gradually became part of a small group of family members
that directed the agricultural enterprise; among other things, he
oversaw sugar exports and sought to ensure favorable trade policies
with the United States (the largest importer of Dominican sugar)
and other countries. Later he was installed as president of Grupo
Vicini, the entity that manages the family's investments and
coordinates initiatives on the bateyes. Juan joined the company in
2000 directly out of school in the United States. He, too, began
working on the agricultural side of the business and ultimately
assumed the number-two position in Grupo Vicini, under Felipe. 7
See infra Part II.A.3.6
Their positions alone may or may not be enough for them to7
have assumed "the risk of closer public scrutiny" that the GertzCourt had in mind. 418 U.S. at 344; cf. Lohrenz v. Donnelly, 350F.3d 1272, 1274 (D.C. Cir. 2003) (holding that the plaintiff was apublic figure when she became a naval aviator during a controversyover women serving in combat). We do not decide that question. But when combined with other factors discussed below, theirleadership positions and how they leveraged those positions lendsupport to the conclusion that Felipe and Juan are public figures.
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Juan's role was perhaps less conspicuous, but it focused
on the bateyes from the beginning. His homecoming in 2000
coincided with Fr. Hartley's controversial benediction –- delivered
during a visit to Fr. Hartley's parish by the Dominican president
–- that was critical of the batey system and of those, including
the Vicini family, responsible for it. The strongly worded
benediction caught the attention of the media, prompting the
Vicinis to call a meeting with Fr. Hartley. As a result of that
meeting, which both Juan and Felipe attended, Juan took on the role
of humanitarian attaché to Fr. Hartley and his cause of improving
conditions on the bateyes. Over the next couple of years Juan and
Fr. Hartley met about a dozen more times, toured the bateyes
together, and regularly spoke by telephone. Juan also hired a
social worker and tasked her with identifying the most pressing
items in need of resolution.8
See, e.g., Tavoulareas v. Piro, 817 F.2d 762, 773 (D.C. Cir. 1987)(en banc) (recognizing that the plaintiff's position as presidentof an oil company was a factor in the public-figure inquiry);Waldbaum, 627 F.2d at 1300 (recognizing that the plaintiff’sposition as president of a grocery cooperative was a factor in thepublic-figure inquiry).
The relevant question is not, as the Vicinis argue, whether8
they intended their interface with Fr. Hartley to remain private,but whether they "volunteered for an activity out of whichpublicity would foreseeably arise." 1 Rodney A. Smolla, Law ofDefamation § 2:32 (2d ed. 2011); see, e.g., McDowell v. Paiewonsky,769 F.2d 942, 949 (3d Cir. 1985) ("[T]he voluntariness requirementmay be satisfied even though an individual does not intend toattract attention" if he "undertakes a course of conduct thatinvites attention[.]"); Rosanova v. Playboy Enters., Inc., 580 F.2d859, 861 (5th Cir. 1978) ("Comment upon people and activities of
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For reasons that are not altogether clear, the Vicini-
Hartley collaboration fizzled in 2003 or 2004. But rather than
abandon the project, the Vicinis embraced it as their own. For
instance, Juan reached out to nongovernmental organizations in
order to combat HIV/AIDS in the bateyes. A newsletter reporting on
the initiative described the efforts of "Casa Vicini" to "develop
cooperative plans to combat HIV/AIDS, with the support of the World
Bank," and included a picture of Juan signing a "participation
agreement." Juan himself described initiatives like these in a
letter to church officials as attempts to find a "solution" to the
batey problem. And around the same time, both Juan and Felipe
began courting the U.S. embassy in Santo Domingo. Juan personally
escorted embassy officials on visits to the bateyes; one visit was
attended by the Deputy Chief of Mission, the embassy’s second-in-
command. For his part, Felipe spoke with embassy officials by
telephone, including the U.S. ambassador. This outreach touched
off a relationship between the Vicinis and U.S. diplomats that
Felipe described as "ongoing."
legitimate public concern often illuminates that which yearns forshadow. It is no answer to the assertion that one is a publicfigure to say, truthfully, that one doesn’t choose to be."). Here,publicity was a foreseeable, if not an inevitable, consequence ofJuan's relationship with an outspoken advocate like Fr. Hartley. Together with Juan's other conduct described below, we have littledifficulty concluding that he attempted to influence the resolutionof the batey controversy as much as Felipe, although in a slightlyless visible way.
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Their efforts entered a new phase in 2005. After a U.S.
newspaper published an exposé critical of the batey system, the
Vicinis brought in Newlink Communications, a public-relations (PR)
firm based in the United States. Newlink’s proposal, signed by
Felipe in April 2005, provided for a massive PR campaign in the
Dominican Republic that would reach as far as the United States.
Among other things, the proposal identified the need for a
"strategic communications program" to deal with the "negative
perceptions against the company, reaching the United States media,"
"[b]lock messages" critical of the Vicinis, and "[i]mprove the
image and reputation of the company in the eyes of the public." It
spelled out country-specific strategies, focusing on the Dominican
Republic and the United States, designed to implement those general
goals. And it included media training for both Felipe and Juan, in
Spanish and English, such as mock interviews about the bateyes and
model answers emphasizing Vicini initiatives. All told, the
Newlink deal cost the Vicinis about $1.2 million.
As it was implemented, the Vicini-Newlink PR campaign
targeted several sectors within the Dominican political apparatus.
A Vicini deputy arranged a series of meetings with senior Dominican
officials, particularly those responsible for immigration and labor
policies. Those meetings culminated in a Felipe-led tour of the
bateyes that showcased Vicini initiatives to the heads of the
Dominican interior and labor departments. In the ecclesiastical
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sector, Felipe and Juan met with the Papal Nuncio –- the Vatican’s
equivalent of an ambassador –- to "get our story out" about their
batey initiatives. Felipe also attended a conference of bishops to
give a presentation on "Grupo Vicini’s social programs." And the
press was also targeted: in a single month Felipe was pictured and
quoted in three Dominican newspapers concerning the company’s
"restructuring" efforts in "human resource components." He was
quoted again the next month, this time about improvements in the
bateyes and conditions for workers generally. Then he appeared in
a documentary about the bateyes (not the film at issue here) that
was broadcast on Dominican television. In it, he described efforts
to build rural medical clinics, root out child labor, and bring
modern mechanization to sugarcane cutting. This was followed by
several "Yes to Change" events, hosted by the Vicinis to advertise
their altruism, that resulted in another string of articles
picturing and quoting Felipe.
The PR campaign also targeted international media outlets
and policymakers, particularly in the United States. Felipe
traveled to the United States to meet with the author of the
newspaper exposé referenced above. The purpose of the meeting,
which took place in Newlink's Miami offices, was for the reporter
"to hear the other side of the story." On another occasion, Felipe
sent a deputy to a PBS interview with the stated goal of attempting
"to 'flip' the story" in the family’s favor. According to Newlink
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records, the deputy "was prepared ahead of time for that interview
with a Q&A that Newlink drew up to ensure that his answers were in
keeping with the goal of maintaining the [company’s] image intact."
And in late 2006, Felipe, accompanied by several Newlink team
members, led a U.S. congressional delegation on a tour of Vicini
bateyes. During the tour a "fact sheet" was distributed that
described Vicini initiatives in detail. CNN covered the delegation
and interviewed Felipe; clips of that interview aired on Anderson
Cooper 360E and were rebroadcast multiple times over the next two
months on CNN and its affiliates. Felipe testified that his goal
during these events was "to try to get our story out, to get our
side out."
Shortly before the release of The Price of Sugar (the end
of our continuum), Felipe and Juan hosted an industry luncheon in
the Dominican Republic. One purpose of the luncheon was to reveal
more Vicini initiatives on the bateyes. During the luncheon,
journalists from several Dominican newspapers were permitted to
attend and ask questions. The resulting articles highlighted the
batey initiatives discussed during the event and, as before,
pictured and quoted Felipe and Juan.
All together, this conduct shows beyond hope of
legitimate contradiction that Felipe and Juan are limited purpose
public figures. Both leveraged their positions and contacts to
influence a favorable outcome in the batey controversy. Both
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enjoyed access to the press and exploited it by orchestrating a PR
blitz to garner public support and mute their critics. In doing9
so, both assumed roles of prominence for this limited purpose and
the risk of closer public scrutiny that came with it.
3. Bootstrapping and the Privilege of Reply
The Vicinis try to avoid this conclusion by asserting
that most of the above conduct is shielded by the bootstrapping
taboo. The argument is as follows. All of their "public
activities" occurred after and in response to an article in a
Spanish newspaper, El Mundo, published in January 2003. The
article included purportedly defamatory statements by Fr. Hartley,
See Bruno & Stillman, 633 F.2d at 591-92 (suggesting that a9
"concentrated 'advertizing blitz'" would constitute a "thrustinginto the vortex" (quoting Steaks Unlimited, Inc. v. Deaner, 623F.2d 264, 274 (3d Cir. 1980))); see also Tavoulareas, 817 F.2d at773-74 (holding that a defamation plaintiff was a public figure inpart because he and his company "played substantial roles inspearheading a public counterattack on the movement for reform of[their] industry"); Patrick v. Cleveland Scene Publ'g, 582 F. Supp.2d 939, 951 (N.D. Ohio 2008) (ruling that a defamation plaintiffwas a public figure in part because he "retained a public relationsfirm to represent his interests in the controversy"), aff'd, 360 F.App'x 592 (6th Cir. 2009); Carr v. Forbes, Inc., 121 F. Supp. 2d485, 492 (D.S.C. 2000) (ruling that a defamation plaintiff was apublic figure in part because "his group paid a lobbyist/publicrelations firm over $1 million"), aff'd, 259 F.3d 273 (4th Cir.2001); FoodScience Corp. v. McGraw-Hill, Inc., 592 F. Supp. 362,363, 365-66 (D. Vt. 1984) (ruling that a defamation plaintiff wasa public figure in part because the company hired a "publicrelations representative" in order "to influence and counter theadverse impact of the unfavorable publicity that attended the FDAinvestigation and subsequent litigation"); Astra USA, Inc. v.Bildman, 914 N.E.2d 36, 58 & n.45 (Mass. 2009) (holding that adefamation plaintiff was a public figure in part because heassembled a "public relations team" in order "to influenceinformation disseminated" to news sources).
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the "original defamer," that were repeated in the film four years
later. Because the Vicinis would not have entered the public arena
but for the El Mundo article, the filmmakers cannot invoke the
Vicinis' status as a defense to the same defamation in the film.
The argument is creative, but this case does not fit the
bootstrapping mold. Bootstrapping in this context occurs when the
defendant relies on his own defamatory publication to manufacture
a public controversy involving the plaintiff, and thus "by [his]
own conduct, create[s his] own defense by making the claimant a
public figure." Hutchinson, 443 U.S. at 135. That is the logic
behind the requirement that public-figure status -- whether
acquired for all purposes and in all contexts or derived from a
particular controversy -- predate the alleged defamation. See,
e.g., Gray, 221 F.3d at 251; Kassel, 875 F.2d at 941; Bruno &
Stillman, 633 F.2d at 591; see generally Smolla, Law of Defamation
§ 2:25 (recognizing "the media's potential for 'bootstrapping'
itself into the protection of the actual malice standard by
pointing to its own coverage of the plaintiff as evidence that the
plaintiff is a public figure," and that in response "a number of
courts have emphasized that the public controversy must 'preexist'
the speech giving rise to the defamation suit").
Here, however, the El Mundo article did not create the
batey controversy. It is undisputed, at least on appeal, that the
controversy began much earlier and was in full swing before Fr.
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Hartley arrived in the Dominican Republic and well before the El
Mundo article was published in 2003. Like the Vicinis themselves,
Fr. Hartley was a voice in that controversy; he was not its
creator. So even if the El Mundo article served as a "blueprint"
for the film -- a claim that we think the Vicinis exaggerate --10
no bootstrapping occurred from which the filmmakers could have
benefitted in this lawsuit.
What the Vicinis argue, at bottom, is that their conduct
fell under a so-called privilege of reply. The concept has its
roots not in the First Amendment but in the common law that
governed defamation suits prior to New York Times. Writ large, it
allowed a defamed person to respond to the extent reasonably
necessary to defend himself, even to the point of defaming his
accuser. Under their theory, as we understand it, the Vicinis11
Our review of the El Mundo article reveals that it shares10
little in common with the film besides one or perhaps two of theallegedly defamatory statements that the Vicinis still press inthis case.
Restatement (Second) of Torts § 594 cmt. k (1977) ("A11
conditional privilege exists . . . when the person making thepublication reasonably believes that his interest in his ownreputation has been unlawfully invaded by another person and thatthe defamatory matter that he publishes about the other isreasonably necessary to defend himself. The privilege here isanalogous to that of self-defense against battery, assault or falseimprisonment . . . . Thus the defendant may publish in anappropriate manner anything that he reasonably believes to benecessary to defend his own reputation against the defamation ofanother, including the statement that his accuser is an unmitigatedliar."); see also Smolla, Law of Defamation § 8:47 ("There is aconditional common law privilege to make statements for theprotection of the speaker's own legitimate interests. . . . The
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could publicly defend themselves against defamatory statements in
the El Mundo article without sacrificing their private-figure
status, as long as their response was measured and reasonable.
Although not in so many words, the Vicinis ask us to graft the
common-law privilege of reply onto the constitutional public-figure
analysis.
To our knowledge only one court of appeals has explicitly
taken such a step. See Foretich v. Capital Cities/ABC, Inc., 37
F.3d 1541 (4th Cir. 1994). In Foretich, grandparents, accused by
their daughter-in-law of molesting their infant granddaughter, made
limited "public comments and appearances" to rebut her accusations.
Id. at 1557-58 (granting requests for interviews, attending three
press conferences, and appearing on two television shows). The
court acknowledged that some of those rebuttals "were probably
intended (at least in part) to influence the outcome of the custody
dispute." Id. at 1563. Nevertheless, invoking the common-law
privilege of reply, the court held that the grandparents' "primary
privilege is roughly analogous to the common law privilege ofself-defense in response to physical attack, or the privilege ofself-help to defend property. As is the case with thoseprivileges, the conditional privilege to defend legitimateself-interest is usually regarded as forfeited if the speakerpublishes more than is reasonably required to defend his or herinterest, or if the speaker publishes beyond the circle of personsto whom the self-defensive action is relevant."); accord Borley v.Allison, 63 N.E. 260, 261 (Mass. 1902) ("One attacked by a slanderor libel has a right to defend himself, but he has no right to turnhis defense into a slanderous or libelous attack, unless it clearlyappears that such attack was necessary for his justification.").
-21-
motive was to defend their own good names against [her] accusations
and that their public statements can most fairly be characterized
as measured defensive replies to her attacks, rather than as
efforts to thrust themselves to the forefront of a public
controversy in order to influence its outcome." Id.
We agree with Foretich in this limited sense: an
individual should not risk being branded with an unfavorable status
determination merely because he defends himself publicly against
accusations, especially those of a heinous character. Pendleton,
156 F.3d at 68; see Firestone, 424 U.S. at 455 n.3; accord Clyburn
v. News World Commc'ns, Inc., 903 F.2d 29, 32 (D.C. Cir. 1990)
("[W]e have doubts about placing much weight on purely defensive,
truthful statements made when an individual finds himself at the
center of a public controversy but before any libel occurs; it is
not clear why someone dragged into a controversy should be able to
speak publicly only at the expense of foregoing a private person's
protection from defamation.").12
We are reluctant to adopt the reasoning of Foretich outright,12
however, because this case does not require us to do so and alsobecause its rationale has divided scholars. Compare David A.Elder, A Libel Law Analysis of Media Abuses in Reporting on theDuke Lacrosse Fabricated Rape Charges, 11 Vand. J. Ent. & Tech. L.99, 115-17 (2008) (describing Foretich's holding as "groundbreakingand scholarly" and "necessary to vindicate the accuseds'reputations"), with 1 Robert D. Sack, Sack on Defamation § 5:3:11,at 5-66 (4th ed. 2011) ("The Foretich court's analysis is notpersuasive. The logical connection between the plaintiffs' freedomto speak with relative impunity in reply to charges under common-law principles, and their not being required to prove 'actualmalice' when subsequently spoken about under constitutional
-22-
But that is not what happened here. Although the Vicinis
claim that the El Mundo article was a call to arms, the record is
clear that they took little if any action directly in response to
it. Juan testified that the only action he took was to order an
internal inquiry concerning one accusation; Felipe testified that
he took no action whatsoever. And even if the El Mundo article had
some indirect influence on their conduct over the next four years,
that conduct went well beyond any reasonable measure of self-
defense, as we have shown.13
4. Public Figures and Geography
The Vicinis' final argument on the limited-purpose public
figure issue is a geographic one. They say that none of the above
conduct makes them public figures in the United States, where the
principles, is unstated and unclear. When a person has been drawninto speaking on an issue, one would think that the law shouldencourage the continuation of the debate rather than cutting it offonce that person has spoken."), and William K. Jones, Insult toInjury: Libel, Slander, and Invasions of Privacy 50 (2003) ("[T]hegrandparents' comments [in Foretich] could be viewed as goingbeyond [their daughter-in-law's] attack and seeking to influencethe outcome of the custody dispute. But the court resolved doubtsin favor of [the grandparents] to vindicate their right of self-defense: 'Further extending the New York Times actual malicestandard here would serve only to muzzle persons who stand falselyaccused of heinous acts and to undermine the very freedom of speechin whose name the extension is demanded.' The problem with thisreasoning is that the postulated muzzling effect is potentiallyapplicable to anyone considering whether to participate in a publicdebate.") (internal footnote citation omitted).
The same analysis applies to subsequent media items that the13
Vicinis claim, in a single footnote, further goaded them into thepublic arena, such as a January 2005 newspaper exposé and June 2005film trailer.
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alleged defamation was published. The argument rests on an analogy
to general-purpose public figures, and those authorities that
require such individuals to have achieved notoriety where they were
defamed. The Vicinis reason that this geographic restriction must
also be true for limited-purpose public figures, who are the more
"protected" of the two.
The analogy is flawed. Gertz held that the plaintiff was
not a public figure for all purposes because he had "no general
fame or notoriety in the community" and was not generally known to
"the local population." 418 U.S. at 351-52. Based on that
language, some courts -- we have not addressed the question and we
do not do so today -- have extrapolated that a general-purpose
public figure need not attain "nationwide fame," only "notoriety
where he was defamed[,] i.e., where the defamation was published."
Waldbaum, 627 F.2d at 1295 n.22. Arguably, this so-called14
community standard actually expands rather than restricts the
applicability of the New York Times rule, at least for general-
purpose public figures.
Compare Lewis v. Coursolle Broad. of Wis., Inc., 377 N.W.2d14
166, 171-72 (Wis. 1985) (agreeing with Waldbaum), and Williams v.Pasma, 656 P.2d 212, 216 (Mont. 1982) (same), with Bowman v.Heller, 651 N.E.2d 369, 373 (Mass. 1995) ("The fame required for anindividual to be a public figure for all purposes, as opposed to alimited purpose public figure, is very great; the individual mustbe a 'household name' on a national scale."). See generally Sack,Sack on Defamation § 5:3:9, at 5-50 ("The president of a collegestudent body, for example, might be a 'pervasive' public figure forpurposes of commentary by the student newspaper but not forcommentary by Time magazine or the 'CBS Evening News.'").
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That debate, however, has no relevance here. Gertz
defined a limited-purpose public figure not in terms of geography
but in terms of the controversy that he has stepped into. See
Gertz, 418 U.S. at 351 (defining a limited-purpose public figure as
one who "voluntarily injects himself or is drawn into a particular
controversy"); Tavoulareas, 817 F.2d at 772 ("[T]he scope of the
controversy in which the plaintiff involves himself defines the
scope of the public personality."). That suggests to us that, if
Gertz envisioned any limitation on public-figure status, it is a
limitation inherent in the scope of the controversy itself.
Cases on this point, though rare, have reached
essentially the same conclusion. See, e.g., Trotter v. Jack
Anderson Enters., Inc., 818 F.2d 431 (5th Cir. 1987). In Trotter,
the Fifth Circuit held that the plaintiff was a limited-purpose
public figure for purposes of a U.S. publication because the
controversy -- labor violence at a Coca-Cola bottling plant in
Guatemala -- resonated in the United States: "Because of the
proximity of other Western Hemisphere countries to the United
States, social and political turmoil occurring there has aroused
particular domestic concern." Id. at 434. Although the
plaintiff's affiliation with a U.S. company played some role, the
court's analysis focused on the fact that the controversy had
"captured the attention of a diverse and broadly-based audience [in
the United States], including the media, political leaders, human-
-25-
rights organizations, labor unions, and Coca-Cola shareholders."
Id.15
Similarly, here, the batey controversy was not confined
to the shores of the Dominican Republic. Rather, it resounded in
the United States for obvious humanitarian reasons and a less-
obvious geopolitical one: a long-standing import quota system
under U.S. law that subsidizes Dominican sugar producers, including
the Vicinis. Indeed, one of Felipe's core responsibilities was16
See also Bryant v. Associated Press, 595 F. Supp. 814, 81715
(D.V.I. 1984) (rejecting the plaintiff's argument that, although hemight have been a limited-purpose public figure in St. Kitts, hewas not one in the U.S. Virgin Islands where the defamation waspublished), cited in David Elder, Defamation, Public Officialdomand the Rosenblatt v. Baer Criteria -- A Proposal forRevivification: Two Decades After New York Times Co. v. Sullivan,33 Buff. L. Rev. 579, 627 n.205 (1984) ("It is doubtful the result[in Bryant v. Associated Press] would or should be different if thestory had been picked up and published by the Associated Press onthe mainland, i.e., South Florida or New York City."). Cf. Carr v.Forbes, Inc., 259 F.3d 273, 282 & n.2 (4th Cir. 2001) (holding thatthe plaintiff was a limited-purpose public figure for purposes ofan allegedly defamatory article in widely-circulated Forbesmagazine, even though his conduct giving rise to public-figurestatus occurred only in circumscribed localities within Arizona andSouth Carolina); Nielsen v. Wall, No. C9-01-173, 2001 WL 969004, at*3 (Minn. Ct. App. Aug. 28, 2001) (rejecting the plaintiff'sargument that "his status as a limited-purpose public figure endsat the geographical boundaries of the Roseville area" for lack of"pertinent supporting authority").
For a history of the subsidy, see for example Michael R.16
Hall, Sugar and Power in the Dominican Republic: Eisenhower,Kennedy, and the Trujillos (2000). For current efforts in Congressto undo the subsidy, see Stop Unfair Giveaways and Restrictions(SUGAR) Act, S. 25, 112th Cong. § 4 (as introduced and referred toS. Comm. on Agriculture, Nutrition, and Forestry, Jan. 25, 2011),and Sen Shaheen Wants to End the Sugar Subsidies (NHPR radiobroadcast Mar. 2, 2011), http://www.nhpr.org/sen-shaheen-wants-end-sugar-subsidies.
-26-
seeing to it that this quota system remained intact through
lobbying and other efforts. Concerns that negative publicity about
the bateyes might jeopardize the quota system prompted him and
Juan, at least in part, to launch the PR blitz that reached U.S.
media outlets and policymakers, as we have shown. We are satisfied
that such conduct is enough to make the plaintiffs public figures
in the United States for purposes of this lawsuit. 17
B. Attorney-Client Privilege
Documentarians commonly obtain insurance against
potential "errors and omissions" in their films. The pursuit of
such insurance in this case led the filmmakers to Frederick
Leopold, an attorney and specialist in that field. Leopold told
them that, in order to procure insurance, he would need a third-
party report confirming the accuracy of the script, and recommended
or directed that they retain Elizabeth Bardsley and her company to
do it. The filmmakers then hired Bardsley; she worked closely with
the filmmakers and in the process numerous email communications
The Vicinis rued at oral argument, although not in their17
brief, that this conclusion takes us back to Rosenbloom. Althoughthe argument comes too late, United States v. Bayard, 642 F.3d 59,66 n.10 (1st Cir. 2011) (arguments raised at oral argument but notin a party's initial brief are waived), we swiftly reject it on themerits. The plurality in Rosenbloom suggested a standard thatwould require a private individual to prove actual malice if hisspeech touched on an issue of public concern. Rosenbloom, 403 U.S.at 43-44. That standard was repudiated by Gertz in favor of aframework linking the plaintiff's burden of proof to his status.Gertz, 418 U.S. at 343. As demonstrated above, we have faithfullyapplied the Gertz framework in this case.
-27-
were generated between them. Ultimately, she rendered a report in
the form of an annotated script which she provided to the
filmmakers and to Leopold.
During discovery the Vicinis sought the email
communications and the report, but the filmmakers withheld them all
on attorney-client privilege grounds. The Vicinis responded by18
filing a motion to compel and averred at a 2008 hearing on pending
motions that the documents were pertinent to the filmmakers' state
of mind. At that time, the district court indicated that the
nature of the relationship between Leopold, the filmmakers and
Bardsley may involve a factual matter requiring live testimony.
The topic of possible in camera review also was broached. This
particular discovery dispute, however, remained unresolved for a
stretch of time in the midst of the parties' ongoing motion
practice.
Finally, litigation on the then-renewed motion to compel
came to a head around the same time that the filmmakers pitched
their summary judgment motion. At a 2009 hearing again addressing
The filmmakers initially sought to shield the documents based18
on both attorney-client privilege grounds and under the attorneywork product doctrine. Yet, their objection to the renewed motionto compel exclusively focused on the former, a position thefilmmakers continue in their responsive brief before us. We simplynote therefore that the work product doctrine plays no part of ouranalysis. See generally United States v. Textron, Inc. andSubsidiaries, 577 F.3d 21 (1st Cir. 2009), cert. denied, 130 S. Ct.3320 (2010) (discussing scope of work product doctrine); Maine v.U.S. Dept. of Interior, 298 F.3d 60, 68 (1st Cir. 2002) (same).
-28-
pending motions, the Vicinis identified the desired documents as
material to the issue of actual malice. Acknowledging that the
renewed motion to compel had "fallen through the cracks," the
district court indicated that it would consider the document
request in the context of the then-pending dispositive motion.
Ultimately, while it granted the filmmakers summary judgment in a
detailed and necessarily lengthy order, the court denied the
renewed motion to compel without any substantive discussion.
On appeal the Vicinis argue that the district court erred
in denying their discovery motion and that the documents are
critical to the actual malice inquiry. For their part, the
filmmakers contend that the district court properly determined that
the attorney-client privilege applies. We conclude that the19
record fails to support the district court's ruling that the
filmmakers established that all the documents are protected by the
attorney-client privilege as a matter of law. Rather than reverse
the district court's decision, we think it prudent under the
circumstances of this case to vacate and remand for the court to
take up the matter in light of the guidance we provide forthwith.
The standard of review concerning a claim of privilege
depends on the particular issue. Cavallaro v. United States, 284
The filmmakers also assert that the Vicinis did not19
adequately preserve the privilege question for appeal, but ourreview of the record satisfies us otherwise and prompts us toproceed directly to the merits.
-29-
F.3d 236, 245 (1st Cir. 2002). Questions of law are reviewed de
novo, findings of fact for clear error, and evidentiary
determinations for abuse of discretion. Id. The standard does not
change when the district court's ruling is unexplained. FDIC v.
Ogden Corp., 202 F.3d 454, 460 (1st Cir. 2000) ("Although a lower
court's elucidation of its reasoning invariably eases the appellate
task, motions often are decided summarily. . . . [W]e are aware of
no authority that would allow us automatically to vary the standard
of review depending on whether a district court has taken the time
to explain its rationale."). Here, the privilege issue as decided
by the district court largely turns on a legal question that we
review de novo.
There is a threshold issue about whether to apply federal
or state privilege law. The Vicinis assert, and the filmmakers do
not contest, that federal law applies. The basis for that position
seems to be that the disputed documents are relevant to actual
malice, a requirement gleaned from the federal constitution. See
N.Y. Times, 376 U.S. at 279-80. We doubt that the parties' choice
of law is correct: defamation is a state cause of action, as the
Vicinis recognized when they brought this suit in diversity, and by
rule privilege issues arising out of such actions are to be
determined "in accordance with State law." Fed. R. Evid. 501;
Herbert v. Lando, 441 U.S. 153, 182 (1979) (Brennan, J.,
dissenting) (recognizing that state law governs privilege claims in
-30-
defamation suits brought in diversity: "Although [New York Times]
placed constitutional limits on state libel claims, it did not
itself create a federal cause of action for libel. The 'rule of
decision' in this case, therefore, is defined by state law.").
But in this instance we need not disturb the parties'
choice. When the parties agree on the substantive law that should
govern, "we may hold the parties to their plausible choice of law,
whether or not that choice is correct." Perry v. Blum, 629 F.3d 1,
8 (1st Cir. 2010); see Moores v. Greenberg, 834 F.2d 1105, 1107 n.2
(1st Cir. 1987) (noting that when the parties agree on what
substantive law controls, a federal court "ordinarily should" honor
the agreement). Here, all parties indicate, at least implicitly,
that federal law controls, and they have briefed and argued the
privilege question on that basis. In all events, the parties have
not identified any material difference between federal and state
(presumably Massachusetts) law on this point, nor has our research
found any. We think it practical under these circumstances to
abide by the parties' choice and decide the question under federal
law.
We begin with the basics. By safeguarding communications
between attorney and client, the privilege encourages disclosures
that facilitate the client's compliance with law and better enable
him to present legitimate arguments when litigation arises. United
States v. Mass. Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997);
-31-
see Upjohn v. United States, 449 U.S. 383, 389 (1981). The
privilege is not limitless, however, and "courts must take care to
apply it only to the extent necessary to achieve its underlying
goals." In re Keeper of Records (Grand Jury Subpoena Addressed to
XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003). In other words, "the
attorney-client privilege must be narrowly construed because it
comes with substantial costs and stands as an obstacle of sorts to
the search for truth." Id. (citing United States v. Nixon, 418
U.S. 683, 709-10 (1974)).
The contours of the privilege are reasonably well honed.
It protects "only those communications that are confidential and
are made for the purpose of seeking or receiving legal advice."
Id.; see also In re Grand Jury Subpoena (Mr. S.), No. 10-2048, 2011
WL 5153837, at *4 (1st Cir. Nov. 1, 2011) (outlining necessary
prerequisites to the privilege); 8 John H. Wigmore, Evidence §
2292, at 554 (John T. McNaughton rev. 1961). That protection
ceases, or is often said to be "waived," when otherwise privileged
communications are disclosed to a third party. Mass. Inst. of
Tech., 129 F.3d at 684. The rationale is that such disclosure
"destroys the confidentiality upon which the privilege is
premised." In re Keeper of Records, 348 F.3d at 22; see generally
2 Paul R. Rice, Attorney-Client Privilege in the U.S. § 9:79, at
357 (2d ed. 1999). The party invoking the privilege must show both
-32-
that it applies and that it has not been waived. In re Keeper of
Records, 348 F.3d at 22.
There is a possible extension of the privilege when a
third party helps the lawyer give legal advice. See United States
v. Kovel, 296 F.2d 918 (2d Cir. 1961) (Friendly, J.). In Kovel,
the Second Circuit held that third-party specialists, such as
accountants, hired to assist lawyers in complicated matters, cannot
be compelled to testify about client confidences. Id. at 919. The
court reasoned that "the presence of an accountant, whether hired
by the lawyer or by the client, while the client is relating a
complicated tax story to the lawyer, ought not destroy the
privilege" because "the accountant is necessary, or at least highly
useful, for the effective consultation between the client and the
lawyer which the privilege is designed to permit." Id. at 922. 20
The filmmakers try to fit the Bardsley documents into the
Kovel mold. They argue that Bardsley was "necessary, or at least
highly useful" because Leopold required her report in order to
analyze and assess the legal risks associated with the film. That
may be true (though a point we do not resolve here), but it is not
sufficient. The key, it seems to us, involves considering the
source and nature of the information contained in the documents.
We have never actually adopted Kovel, despite its pedigree20
and wide acceptance, but have assumed for the sake of argument thatwe would do so in the right case. Cavallaro, 284 F.3d at 247 n.6.At the risk of being overly cautious, we follow that approach againtoday.
-33-
If the communication contains only client confidences made in
pursuit of legal advice -- or legal advice based on such client
confidences -- that communication, if intended to remain
confidential, should be covered by the privilege, regardless of
whether it came from the client, his attorney, or an agent of
either one. If, however, the transmitted information consists21
largely of facts acquired from non-client sources, those facts are
not privileged. See generally In re Grand Jury Subpoena (Mr. S.),22
2011 WL 5153837, at *5 (remarking that real estate transaction
documents generated by attorney are ordinarily non-confidential by
nature and generally do not involve the giving of legal advice).
See, e.g., United States v. Defazio, 899 F.2d 626, 635 (7th21
Cir. 1990) ("Communications from attorney to client are privilegedonly if they constitute legal advice, or tend directly orindirectly to reveal the substance of a client confidence."); seealso In re Bieter Co., 16 F.3d 929, 939 (8th Cir. 1994) (concludingthat communication between real estate development partnership anddeveloper it retained as an independent contractor for bothdevelopment and subsequent litigation was protected).
See, e.g., In re Grand Jury Proceedings, 616 F.3d 1172, 1182-22
83 (10th Cir. 2010) ("[W]here the attorney was acting as a'conduit' for non-confidential information, the client may notinvoke the attorney-client privilege."); United States v. Ackert,169 F.3d 136, 139 (2d Cir. 1999) (rejecting privilege claim becauseinformation was obtained from non-client sources); USPS v. PhelpsDodge Ref. Corp., 852 F. Supp. 156, 162 (E.D.N.Y. 1994) (same); seegenerally 1 Edna Epstein, The Attorney Client Privilege & The WorkProduct Doctrine § 1-III-2-C, at 219 (5th ed. 2007) ("If theinformation is independently gathered from third parties, thatfactual inquiry conducted by the expert will not be deemed to beprivileged. The source of the information is not confidentialcommunications collected from the client. Thus, the mere fact thatthe information gathered has been digested by the retained expertfor the attorney to render legal advice thereon will not transformthe inquiry into a privileged one.").
-34-
On the record before us, at least for the most part, we
seem not to be dealing with client confidences. According to the
filmmakers, Bardsley functioned as a type of fact-checker of the
assertions in the film. The very nature of that role would require
her to verify those assertions with outside sources, and the
filmmakers do not claim otherwise. Insofar as the filmmakers'
script itself is concerned, it is not confidential but is intended
for public consumption. And there is evidence that Bardsley's
report -- an annotated version of the script following her fact-
check -- was designed to be disclosed to third parties (prospective
insurers), even if it ultimately was not. Indeed, a
contemporaneous document produced by the filmmakers indicates that
they hired Bardsley because "Fred [Leopold] needs a 3rd party
report to put in front of insurance co. [sic]."
We acknowledge that the face of Bardsley's report
contains declarative markings of confidentiality, and evidence
indicates that the electronic version was password protected. Yet
deposition testimony fairly displays the filmmakers' tacit
acknowledgment that they had no expectation that Leopold would keep
Bardsley's annotated script confidential, even if his actual
disclosure of it was never brought to bear by prospective insurers.
In short, the filmmakers have not met their burden of showing that
all of the materials they sought to protect come within the Kovel
rubric.
-35-
Turning briefly to the email communications between the
filmmakers and Bardsley, a less clear answer emerges. Simply put,
the record does not provide much help on the nature of these
communications. It may be that Bardsley in large part was
obtaining the filmmakers' sources in order to conduct her
independent evaluation, or perhaps she was providing the filmmakers
updates on her progress. While it is questionable whether such
information would fall within the privilege, it is at least
conceivable that some of the email communications may involve
client confidences to some degree.
The Vicinis rest heavily on the apparent business purpose
of the filmmakers' relationship with Leopold, and Bardley's
involvement to further that relationship, to argue that no
privilege attaches to any of the sought after documents. Yet it is
not entirely clear from this record that such purpose did not
incorporate a meaningful attorney-client privilege component. See
generally In re Grand Jury Subpoena (Mr. S.), 2011 WL 5153837, at
*5 n.3 (noting that while documents generated by attorney
facilitating a real estate transaction may not typically fall
within the privilege, "[i]t takes little imagination to conceive
instances in which a particular communication regarding a real
estate closing may satisfy all of the requirements of the attorney-
client privilege"). Notably, early on in the litigation the
district court displayed an initial instinct that live testimony
-36-
may be required for proper court resolution of the privilege
question in this case, and possible in camera review was
preliminarily discussed. While we understand that the filmmakers
bore the burden of providing sufficient evidence to establish
privilege, our careful review of the procedural history of this
case -- a tale we need not detail here -- counsels against
rendering a decision based on this legal stance. See id. ("a
blanket assertion of privilege is generally insufficient").
One final word on the substance. The doctrine construing
the attorney-client privilege narrowly seems to favor production in
this instance. That doctrine strikes us as particularly applicable
in defamation cases, such as this one, involving public figures.
Cf. Lando, 441 U.S. at 175-76; Bruno & Stillman, 633 F.2d at 594-
97. Actual malice must be proven with "convincing clarity," N.Y.
Times, 376 U.S. at 285-86, and this same standard applies whether
the matter is resolved on summary judgment or at trial, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 244 (1986). Mindful of this
hefty burden, upholding the district court's decision on this
record to withhold the sought documents which seemingly bear
directly on state of mind would be incompatible with the "search
for truth." Nixon, 418 U.S. at 710.
This conclusion prevents us from reaching the issue of
actual malice. Whatever documents must be produced, the trial
judge did not examine them when he granted summary judgment in
-37-
favor of the filmmakers on that issue. And because the documents
have not been submitted to us, we cannot determine whether summary
judgment was warranted despite them. We are cognizant,
nevertheless, that even should some documents or portions thereof
be disclosed in the end, some of the district court's rulings on
the seven putative defamatory statements may still stand. And yet
we deem it is unwise to embark on a piecemeal approach to these
statements at this juncture. On remand, the actual malice issue
will have to be readdressed should any documents be disclosed.
We recognize the possibility that some documents, or
portions of some documents, may contain information that is
privileged under the framework set forth above. Rather than risk
disclosure of such information, the district court has the option
within its discretion on remand to review these documents in
camera, allow the filmmakers to withhold any documents covered by
privilege, and redact prior to production any portions of
admissible documents that it finds are privileged. See In re Grand
Jury Subpoena (Mr. S.), 2011 WL 5153837, at *3 (emphasizing
"prudential purpose" of in camera review to resolve legitimate
privilege disputes, and noting that district court may be "well
advised" to conduct review even absent an explicit request). The
court also may need to consider on remand the Vicinis' waiver
argument pertaining to the sufficiency of the privilege log, and
-38-
choose to entertain other legitimate arguments relative to
disclosure, waiver and privilege which the parties seek to raise.
We underscore that we are not intending to set any
precedent for requiring district courts to engage in a particular
procedure for discerning the validity of a privilege claim, either
in the defamation context or in another type of litigation.
Rather, the particular procedural history before the district court
and other unique circumstances in this case call us to the present
course. See In re Grand Jury Subpoenas, 123 F.3d 695, 699-700 (1st
Cir. 1997) (remanding for in camera review where record lacked
sufficient information for appellate court to form a reasoned
judgment whether requested records were privileged).
III. CONCLUSION
For these reasons, we affirm the limited purpose public
figure status determination but otherwise vacate the dispositive
judgment, vacate the denial of the motion to compel insofar as the
Bardsley documents are concerned, and remand for further
proceedings consistent with this opinion. We take no position on
the actual-malice issue. The parties shall bear their own costs.
So ordered.
-39-